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Percoco v. Lowe's Home Centers, LLC

United States District Court, D. Connecticut

September 22, 2016

VIVIAN PERCOCO, Plaintiff,
v.
LOWE'S HOME CENTERS, LLC, Defendant.

          MEMORANDUM OF DECISION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE

         Plaintiff Vivian Percoco brings this employment discrimination action against her former employer, Defendant Lowe's Home Centers, LLC. She raises claims for race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen.Stat. § 46a-60 et seq.; claims for age discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and CFEPA; and claims for interference and retaliation in violation of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 et seq.[1] Defendant moves for summary judgment on all claims. The Court grants the motion and enters judgment in favor of Defendant.

         Background

         The following facts, which are undisputed unless otherwise noted, are drawn from the record.[2] Plaintiff is Hispanic, is of Puerto Rican descent, and was over the age of forty at all relevant times. ECF Nos. 1 (Compl.) at ¶ 16; 37 (Answer) at ¶ 16; see 42-9 (Pl. Depo.) at 129:16-21. Plaintiff worked as the Human Resources Manager for Defendant's Danbury store from 2006 until 2013. ECF Nos. 1 (Compl.) at ¶¶ 15, 19, 39; 37 (Answer) at ¶¶ 15, 19, 39; 42-10 (Jewell Depo.) at 12:15-19. Her immediate supervisor in 2013 was Area Human Resources Manager Svetlana Jewell née Baranova, who is neither Hispanic, Puerto Rican, nor over the age of forty. ECF Nos. 1 (Compl.) at ¶ 21; 37 (Answer) at ¶ 21; 42-10 (Jewell Depo.) at 5:15- 20. Jewell's immediate supervisor was Human Resources Director Luis Rivera, who is Hispanic, is of Puerto Rican descent, and was over the age of forty in 2013. ECF No. 42-2 (Rivera Aff.) at ¶¶ 2-3, 5. Members of the Human Resources Department, including Plaintiff, are not trained to investigate complaints of gender discrimination and harassment. ECF No. 42-10 (Jewell Depo.) at 30:8-18, 35:3-9. Given the potential for legal liability, Defendant's Employee Relation Department are specifically trained to investigate these claims. Id. at 35:10-18.

         On March 31, 2013, Plaintiff sustained face and chest injuries from a car accident. ECF No. 42-9 (Pl. Depo.) at 13:2-20. That night, she informed the night manager of Defendant's Danbury store that the car accident prevented her from coming to work the following week. Id. at 15:13-16:10. A few days later, Plaintiff also informed Jewell, and Jewell told Plaintiff “to take it easy and just keep in contact with [Plaintiff's] coordinator.” Id. at 16:11-25. Plaintiff used four paid sick days, id. at 17:22-18:8; ECF No. 42-10 (Jewell Depo.) at 10:9-14, and never received nor requested any type of FMLA documentation, ECF No. 42-9 (Pl. Depo.) at 18-21. Plaintiff returned to work on Monday, April 8, 2013. Id. at 13:24-14:9.

         The Friday evening before Plaintiff's return, Kayla Fleming, a store employee, emailed Store Manager Angelo Resso and Plaintiff. ECF No. 42-5 (Email). Fleming's email states, in relevant part, that “[Manager Samir Feratovic] told me on multiple occasions that because he is a man and we are women that men are superior to women in every way therefore he is above me.” Id. When Plaintiff returned to work the following Monday, Resso informed Plaintiff that a number of employees including Fleming had submitted written statements concerning sexual harassment, but Resso did not provide any specific details. ECF No. 42-9 (Pl. Depo.) at 19:4-20:2. Plaintiff read Fleming's email that Monday afternoon, id. at 22:5-7, and the following day Resso provided Plaintiff with the three written complaints, id. at 20:10-12. The complainants alleged that Feratovic had made statements that he does not listen to women, that woman are beneath him, and that men are superior to women. ECF Nos. 6-8 (Written Statements). Lisa LeBreque, a store employee, also complained to Plaintiff, but the parties dispute whether this occurred on Monday or Tuesday. ECF No. 42-9 (Pl. Depo.) at 25:9-13.

         On Tuesday, April 9, 2013, Plaintiff spoke with Feratovic, ECF No. 42-9 (Pl. Depo.) at 34:2-5, but the parties dispute whether Plaintiff took a written statement from Feratovic, compare Id. at 105:9-15, with ECF No. 42-10 (Jewell Depo.) at 81:2- 6 (“Percoco had explicitly stated . . . that she did not collect a statement from [Feratovic].”). Feratovic admitted that the complaints were accurate. ECF No. 42-9 (Pl. Depo.) at 35:5-10. He further stated that he should not joke that way because women are “mostly emotional and sensitive.” Id. at 44:6-7. Plaintiff believed that Feratovic was just “joking around.” Id. at 45:12-15. Plaintiff also thought that she “stopped the behavior” by telling Feratovic that he “couldn't really be friendly with his subordinates, ” id. at 35:17-22, 112:18-20, and she blamed the incident on Feratovic's national origin, id. at 31:25-32:1 (“[I]t's his personality. I'm just saying that's German.”). But on April 13, one of the complainants informed Plaintiff that Feratovic retaliated against her. ECF No. 42-9 (Pl. Depo.) at 125:17-21.

         Plaintiff informed Jewell of the complaints of gender discrimination a week after Plaintiff first learned of them. ECF No. 42-9 (Pl. Depo.) at 105:20-22. On the following day, Jewell told Rivera because members of the Employee Relation Department, not the Human Resources Department, are specifically trained to and charged with investigating claims of gender discrimination and harassment. ECF No. 42-10 (Jewell Depo.) at 30:8-18, 35:3-9; 35:10-18. In light of the problems caused by Plaintiff's unsupervised investigation, Rivera ordered Jewell to look into the issue, and Jewell learned that one of the complainants intended to call Defendant's hotline because the claims of discrimination went unabated. Id. at 37:21-38:7.

         Rivera also tasked Jewell with ascertaining why Plaintiff waited to immediately report the incident after returning to work, as Plaintiff was required to do, and Plaintiff said she believed that she had addressed the complaints herself. ECF No. 42-10 (Jewell Depo.) at 31:14-32:25. Rivera then decided to terminate Plaintiff's employment for failing to immediately report the incident, and Jewell agreed. Id. at 74:22-75:8. On April 25, 2013, Jewell informed Plaintiff that she was being fired because she failed to promptly notify Jewell of the complaints of gender discrimination after Plaintiff learned of those complaints when she returned to work. ECF No. 42-9 (Pl. Depo.) at 117:3-17. Defendant replaced Plaintiff with a female employee who was over the age of forty, but the record does not demonstrate whether the replacement was younger, Hispanic, or Puerto Rican. ECF No. 42-10 (Jewell Depo.) at 44:7-45:10. Defendant concedes that the replacement was neither Hispanic nor Puerto Rican. ECF No. 42-1 (Mem.) at 11.

         Plaintiff believes that the failure to discharge Resso shows race, national origin, and age discrimination, as well as FMLA retaliation. ECF No. 42-9 (Pl. Deop.) at 131:1-5. Resso is white and younger than Plaintiff, id. at 128:15-18, but the record does not indicate whether Resso is Puerto Rican. Resso was not in the Human Resources Department, is not a human resources professional, and has no reporting relationship to Jewell and Rivera. ECF No. 42-10 (Jewell Depo.) at 16:2- 17:12. Resso received one complaint of discrimination on Friday evening, and he reported the incident the following Monday. ECF No. 42-9 (Pl. Depo.) at 19:14-15, 117:22-24. According to Jewell, Resso was not disciplined because a less-than-five-day delay in reporting was not inappropriate given that Plaintiff, his supervisor, would be returning to work on the following Monday. ECF No. 42-10 (Jewell Depo.) at 14:16-15:1, 44:2-3.

         Plaintiff believes that the failure to discharge Michael Velez, Defendant's Derby Store Human Resources Manager, illustrates age discrimination as well as FMLA retaliation. ECF No. 42-9 (Pl. Depo.) at 128:22-24. Velez is both Hispanic and of Puerto Rican descent but younger than forty. ECF No. 42-11 (Velez Depo.) at 23:14-24. In May 2013, Velez received a complaint that a male store manager used the “f” word when scolding a male employee. Id. at 28:18-19, 57:11-15; ECF No. 42-10 (Jewell Depo.) at 56:8-13. The complaint was not based on any claim of discrimination. ECF No. 42-10 (Jewell Depo.) at 73:1-10. Velez informed Jewell of the alleged incident two or three days later. ECF No. 42-11 (Velez Depo.) at 63:17- 18. Velez received a final warning, the last disciplinary step before being discharged, for failing to immediately report the incident. ECF No. 42-10 (Jewell Depo.) at 72:4-7.

         Plaintiff also believes that she was the victim of age discrimination because another unidentified store manager was allegedly fired six months before Plaintiff was terminated. ECF No. 42-9 (Pl. Depo.) at 141:15-142:25. But other than vague rumor, the record contains no evidence either delineating or substantiating this allegation. Plaintiff further testified that her claim for age discrimination was based on the fact that she and another employee over the age of forty generally felt uncomfortable around Jewell and that Jewell treated them with condescension. Id. at 126:10-15. Plaintiff cannot remember any specifics as to why she felt uncomfortable around Jewell, and Plaintiff does not recall Jewell ever making any age-related comments to her or any other employee. Id. at 127:15-19, 128:9-11.

         Discussion

         I. Standard of Review

         Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of proving that no genuine factual disputes exist. See Vivenzio v. City of Syracuse,611 F.3d 98, 106 (2d Cir. 2010). “In determining whether that burden has been met, the court is required to resolve all ambiguities and credit all factual inferences that could be drawn in favor of the party against whom summary judgment is sought.” Id. (citing Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 255 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 587 (1986)). “If there is any evidence in the record that could reasonably support a jury's ...


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